Nispel v. Western Union Railroad

64 Ill. 311

• Court: Illinois Supreme Court
• Decided: September 15, 1872
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This was an action of assumpsit against a corporation, to which they appeared “in its own propel’person,” and pleaded want of jurisdiction, setting out the facts.

To this plea the plaintiff demurred generally. The court overruled the demurrer and gave judgment against the plaintiff for costs.

To reverse this judgment, the plaintiff brings the record here.

Overruling the demurrer is the only point raised on the record.

The court, in deciding upon the demurrer, doubtless was governed by the case of Mineral Point Railroad Co. v. Keep, 22 Ill. 9.

There was, manifestly, in that case, a misapplication of a rule of pleading, which, though it worked no injury to those parties, and was not required by? the case to be said, has been overruled by the subsequent case of Nixon et al. v. South W. Ins. Co. 47 ib. 444, where it is said a plea by a corporation aggregate, which is incapable, of personal appearance, must purport to be by attorney, referring to 1 Ch. PI. 551. This must be considered the settled rule of this court, as it is of the common law. The plea in that case did not purport to be by attorney, nor was.it pleaded in proper person, as in this plea, but purported to be by the president and secretary of the corporation. The rules of pleading were considered as violated thereby. In conformity with this, the latest expression of opinion of this court on the point, we must hold this plea was bad, and the demurrer should have been sustained.

It is also urged by appellant that the plea is bad for duplicity.1 We do not think, in a legal sense, the plea is obnoxious to that objection. All the facts stated in it were necessary to show why the court in which the suit was brought had not jurisdiction.

Por the reasons given, the judgment is reversed and the cause remanded.

Judgment reversed.